Allahabad High Court
Renu Singh Rathore vs U.P. State Industrial Development ... on 12 November, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 05.01.2018 Judgment Delivered on 12.11.2018 Case :- WRIT - A No. - 27720 of 2015 Petitioner :- Renu Singh Rathore Respondent :- U.P. State Industrial Development Corp. Ltd. And Another Counsel for Petitioner :- Ashish Kumar,Manish Goyal Counsel for Respondent :- Satyam Singh,Arvind Srivastava,S.C. Hon'ble Mrs. Sangeeta Chandra, J.
1. Heard Miss Akansha Sharma, learned counsel holding brief of Shri Manish Goyal, Senior Counsel for the petitioner and Shri Arvind Srivastava, learned counsel appearing on behalf of U.P. State Industrial Development Corporation Ltd. (herein after referred to as the 'UPSIDC').
2. This writ petition has been filed challenging the order passed by the Managing Director of the UPSIDC dated 27.01.2015 removing the petitioner from the post of Senior Receptionist-cum-Telephone Operator. It has been submitted by the learned counsel for the petitioner that the respondent no. 2 issued an Advertisement on 19.01.2009 inviting applications from candidates for appointment for the post of Senior Receptionist-cum-Telephone Operator in the pay-scale of Rs.3050-4590. The petitioner made her application along with supporting documents regarding her educational qualifications. The petitioner did not file any certificate relating to Excellence in Sports. She was interviewed and issued an Appointment Letter on 11.08.2009. After working for one year she was also confirmed by an order dated 26.10.2010.
3. It seems that appointment made by the UPSIDC in the year 2008-09 was reviewed at the level of the State Government and Divisional Commissioner, Kanpur Division, Kanpur was asked to submit a report by an order of the Industrial Development Commissioner dated 19.05.2012. Some doubts were expressed regarding sports certificates allegedly submitted by the petitioner as found in the record of the petitioner with respect to participation in a Hockey competition in Guru Nanak Girls Degree College, Sundar Nagar, Kanpur.
4. A show-cause notice was issued to the petitioner on 26.07.2013 asking for her explanation. The petitioner submitted her reply on 25.11.2013 saying that she did not submit any sports certificates for Outstanding Performance along with her application and asked for copy of such certificate, if any, found in her record.
5. On 25.02.2014 she was supplied with a copy of the alleged sports certificates along with a letter of the Principal of the Government Inter College, Faizabad dated 10.06.2013 denying issuance of any certificate in the year 2004-05. The petitioner was shown documents on 07.02.2014 and copies of the same were provided to her on 24.04.2014. She submitted a detailed reply on 09.06.2014 denying submission of certificates and also denying her signatures on such certificates. It was her case that all certificates submitted by her along with application form were self-attested. The signature on other certificates submitted by the petitioner were completely different from the signature appended to the allege sports certificates.
6. On 19.09.2014, a preliminary enquiry was ordered in which two allegations were made against the petitioner i.e. of submitting forged certificates and also that her caste certificate of General Category was not verifiable from the official website.
7. On 09.10.2014, the Enquiry Officer served a charge-sheet upon the petitioner. The petitioner submitted a detailed reply on 05.11.2014 saying that the post of Senior Receptionist-cum-Telephone Operator was advertised as 'Unreserved' and the petitioner was unreserved category candidate and she had not submitted any caste certificate. At the time of submission of her application she has not claimed any reservation. Moreover caste certificate issued to General Category people are never uploaded on the website. She also denied having submitted any sports certificates. It has been submitted that no further enquiry was held by the Enquiry Officer, although the petitioner had requested for personal hearing. All of a sudden the impugned order dated 27.01.2015 was served upon the petitioner dismissing her from service. From the said order dated 27.01.2015 the petitioner came to know that the report was submitted by the Enquiry Officer on 24.11.2014. The Enquiry Officer had given a finding that in the tabulation chart prepared by the Selection Committee, the petitioner was given 03 marks for Outstanding Performance in Sports and these 03 marks could not have been given unless the petitioner submitted sports certificates herself. These sports certificates were found forged as the Principal of the Government Inter College which allegedly issued the certificate had stated that no such sports event took place in the year 2004-05 in Government Inter College. The signature on the alleged sports certificate of the then Principal was not tallying with the signature of the official who had allegedly signed the said certificate. It was also mentioned that the Government Inter College from which the certificate was issued never held any sports competition in the year 2004-05 relating to Degree Colleges and the petitioner allegedly was shown as representing Guru Nanak Girls Degree College, Sundar Nagar, Kanpur.
8. It has been submitted that the petitioner is governed by the UPSIDC (Conduct, Discipline and Appeal) Rules, 1998-99 (herein after referred to as the 'UPSIDC Rules, 1998-99') and if the services of an employee had to be dispensed with, then Rules 38 & 39 have to be followed which prescribe detailed procedure for conduct of disciplinary proceedings. In the facts of the case of the petitioner, removal from service is a major penalty which could not have been given without following the Rules and holding of disciplinary proceedings. In similar circumstances one Sharmila Patel was also removed from service. She filed Writ Petition No. 66054 of 2014 which was allowed by this Court on 16.04.2015. In her case also the UPSIDC had alleged the submission of forged sports certificate and had relied upon the judgment rendered by the Honble Supreme Court in the case of R. Vishwanathan Pillari vs. State of Kerala reported in AIR 2004 SC, 1469 which was to the effect that submission of false caste certificate by a candidate to claim appointment makes the appointment void ab initio and in such cases there was no requirement for holding disciplinary proceedings.
9. This Court had disagreed with the submission of the learned counsel for the UPSIDC and had observed that if a regular disciplinary proceedings were held then perhaps the writ-petitioner would have been able to show that she would have been selected, even if the marks allegedly given for forged sports certificate were not counted at all.
10. In the counter affidavit filed by the respondents, mention has been made of due opportunity of hearing being given to the petitioner including copies of all documents. It has also been mentioned that unless the marks for sports certificates were given to the petitioner, she could not have been selected. The tabulation chart prepared by the Selection Committee shows that she was given 05 marks for two sports certificates submitted by her and if these 05 marks are deducted from the total marks of the petitioner then she would get only 46 marks that were much less than the marks obtained by one other candidate namely Satya Pal Singh who was placed just below the petitioner and had secured 49 marks. The tabulation chart has been enclosed as Annexure-1 to the counter affidavit and specific pleading has been made in paragraph 6 of the counter affidavit which has not been denied in the rejoinder affidavit.
11. It has also been mentioned in the counter affidavit that in the Advertisement issued on 19.01.2009 the qualifications required for the post of Senior Receptionist-cum-Telephone Operator was a Diploma in Hospitality/Public Relations besides a Degree of Graduation. The petitioner did not possess any Diploma in Hospitality/Public Relations. It has been admitted by the petitioner that she had submitted an application form enclosing her High School mark-sheet and certificate/Intermediate mark-sheet and certificate/B.A. & M.A. Mark-sheets only.
12. It has also been stated in the counter affidavit filed by the UPSIDC that the post of Senior Receptionist-cum-Telephone Operator was advertised in the pay-scale of Rs.3050-4590 but she was wrongly given the pay-scale of Rs.6500-10,500/- i.e. the pay-scale of Assistant Manager at the time of issuance of the Appointment Letter. It was a fraudulent appointment and, therefore, no regular disciplinary proceedings were required for termination of her service. The petitioner was given full opportunity of hearing when she was issued a show-cause notice and given copies of all documents which she had asked for. Her reply was duly considered by the Enquiry Officer before submission of Enquiry Report. The respondent no. 2 considered the findings recorded by the Enquiry Officer and passed a reasoned and speaking order. The petitioner could not have any grievance regarding non-conduct of disciplinary proceedings as the petitioner was the beneficiary of a fraud and her appointment was void ab initio as settled by the Hon'ble Supreme Court in the case of R. Vishwanathan Pillai (supra).
13. A copy of the letter of the Principal of Government Inter College, Faizabad is enclosed to the counter affidavit saying that no such event was held in the College in the year 2004-05 for which the certificate was issued to the petitioner. It has also been submitted in the counter affidavit that all documents that were filed by the petitioner along with her application were submitted by the father of the petitioner as has been admitted by the petitioner in her letter dated 12.08.2013 sent to the respondent no. 2 where she acknowledged that all documents were submitted by her father. A copy of the said letter was enclosed as CA-2 to the counter affidavit.
14. In paragraph 24 of the counter affidavit there is a specific averment that the petitioner cannot invoke extra ordinary jurisdiction of this Court when she obtained appointment on forged certificates. It has been submitted that the petitioner did not have the essential qualifications to be selected for the post nor did she have marks (above 49 marks) as secured by the last candidate Satyendra Pal Singh and it is ironical that the petitioner on the one hand submits that she did not file any sports certificates at all which was later found to be forged and yet she claims selection on the basis of marks obtained because of these certificates.
15. It has been submitted that fraud vitiates all actions. In this case the petitioner was fraudulently appointed in a pay-scale that was not meant to be given to her in the first place and without the Diploma in Hospitality and Public Relations. The setting aside of the order impugned passed by the respondent no. 2 would only amount to revival of an illegal order of appointment.
16. In the rejoinder affidavit filed by the petitioner, the petitioner has relied upon the Constitution Bench judgment in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi reported in 1978 (1) SCC, 405 to submit that the order impugned can only be judged on the basis of reasons mentioned therein and not on the basis of any reason supplied in the counter affidavit. Other submissions made in the writ petition have been reiterated that no departmental enquiry was conducted to investigate that whether the forged certificate had been submitted by the petitioner or not. It has been submitted that the tabulation chart filed by the respondents suffers from several anomalies as the certificate submitted by the petitioner is of college level and not of district or state level sports event and she has been given only 02 marks and not 05, as alleged.
17. In any case there were two certificates submitted by the petitioner allegedly, one certificate was for Volley Ball and the other was for Hockey. The certificate for Hockey was doubted and the certificate for Volley Ball was not doubted, therefore, the petitioner would still be entitled for 02 marks. Also no marks were provided to the petitioner for Post Graduate Degree of M.A. which can be considered as a technical qualification.
18. Besides the contentions raised in the writ petition and the rejoinder affidavit at the time of argument, Miss Akansha Sharma has referred to the violation of principles of natural justice and the arbitrariness of the respondents in passing of the impugned order. In the show-cause notice that was issued to the petitioner regarding alleged sports certificate, the petitioner has submitted her reply saying that she did not submit any sports certificates or else it would have been mentioned in her application form along with her other certificates relating to educational qualifications. It was also submitted by her that all other educational certificates were self-attested by her and her signatures were different from the alleged sports certificate. It was contended that the said sports certificate had been kept in her record with malafide intent by somebody, getting her appointment cancelled. In the charge-sheet dated 09.10.2014 a vague allegation i.e. submission of forged caste certificate was also made. The petitioner did not file any caste certificate as the post in question was advertised as 'Unreserved' and she belongs to 'General Category'.
19. It was argued that when she submitted her reply the order of dismissal added one additional ground that the petitioner was awarded 03 marks wrongly for sports certificates. The petitioner was never supplied any copy of the alleged tabulation chart nor any enquiry was held nor any witness examined in the presence of the petitioner. The reliance placed upon the judgment of the Hon'ble Supreme Court in R.Vishwanathan Pillai (supra) was wholly misplaced as the judgment rendered by this Court on 16.04.2015 in Writ-A No. 66054 of 2014 (Sharmila Patel vs. U.P. State Industrial Development Corp. Ltd. And 2 Ors.), this Court has suitably distinguished the aforesaid judgment and the Special Appeal filed by the UPSIDC against such judgment was also dismissed by this Court on 03.08.2015 by observing that the respondent no. 2 had himself chosen to review his order of termination for Sharmila Patel and had initiated regular disciplinary proceedings against Sharmila Patel. It was argued that the petitioner is entitled to a similar review of the order of the Chairman dated 27.01.2015. Had the petitioner been given opportunity in disciplinary proceedings she would have the opportunity to show that even if the marks allegedly given for sports excellence were ignored, she would have still qualified the selection. It has been submitted that there was a specific denial of the charges leveled in the charge-sheet and, therefore, the burden of proof lay upon the employer.
20. It was also argued that the petitioner was a confirmed employee and in the UPSIDC Rules 1998-99, one of the types of misconduct mentioned was resorting to misrepresentation or giving incorrect information for securing an appointment. The petitioner was charged with the said misconduct and not given any opportunity to defend herself. It has also been argued that the impugned order is perverse as the petitioner's selection and appointment are governed under the Rules of UPSIDC which do not provide any additional marks or benefit to be given to a candidate for excellence in sports.
21. In the impugned order mention has been made of selection being held under Direct Recruitment for Group C posts (out side the Purview of U.P Public Service Com mission) Rules, 2002 as amended in the year 2002 and Rule 5 (3) (A) (1) (c) relating to giving additional marks for performance in sports. The selection of the petitioner was not held under the Rules of 2002 applicable to U.P. Government servants but was made under the UPSIDC Rules 1998-99.
22. It has also been argued that no exercise for verification of signatures appended to the educational certificates admittedly submitted by the petitioner and the signatures appended to the alleged forged certificates was done. It has also been argued that no other candidate except the petitioner and Sharmila Patel were targeted as they were females. In the enquiry that was instituted by the Industrial Development Commissioner, the Commissioner Kanpur Division was still investigating the matter when the show-cause notice was issued to the petitioner and the enquiry held and her services were terminated.
23. It has also been argued by the learned counsel for the petitioner that the tabulation chart suffers from various infirmities. The petitioner has not been given any marks for Post Graduation whereas marks have been given for the alleged sports certificates which were never submitted by her. Similarly in the case of Sharmila Patel in the tabulation sheet she was awarded marks for Master Degree in Computer Applications which Degree she never possessed while she was also not awarded any marks for Post Graduation Degree.
24. In any case no misrepresentation or fraud has been practiced by the petitioner in obtaining the appointment and the Selection Committee itself had undertaken an alleged vitiated selection process, therefore, the petitioner's service could not have been terminated. To substantiate her arguments, Miss Akansha Sharma has relied upon the following case law :-
(a) Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi reported in 1978 (1) SCC, 405.
(b) Dr. T.P.SenKumar IPS vs. Union of India & Others reported in 2017 (6) SCC, 801; and
(c) the judgment rendered by the Division Bench of this Court in Special Appeal No. 531 of 2015 (UPSIDC vs. Sharmila Patel) decided on 03.08.2015.
25. Shri Arvind Srivastava, learned counsel appearing for the respondents has, on the other hand, argued that the petitioner admittedly did not possess the requisite qualification for the post as advertised on 19.01.2009. She did not possess the diploma in Hospitality/Public Relations. The petitioner also did not get as many marks as required for selection as the next candidate Satya Pal Singh who was placed just below her in the tabulation chart had secured 49 marks. If the petitioner had not been given 03 marks for participating in the State Level Sports Competition and 02 marks for participating in District Level Sports Event and the 05 marks are deducted, her total of 51 marks is reduced to 46 marks i.e. below the marks obtained by Satya Pal Singh, she could not have been selected at all.
26. It has also been pointed out that the posts were advertised in the pay-scale of Rs. 3050-4590. However, the appointment letter issued to the petitioner was in the pay-scale of Rs.6050-10,500/-. In such a case this Court should not exercise its equitable and extraordinary jurisdiction under Article 226 of the Constitution of India and set-aside the impugned order dated 27.01.2015 as it would only revive an illegal order.
27. Shri Arvind Srivastava has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Gadde Venkateswara Rao vs. Government of Andhra Pradesh reported in AIR 1966 SC, 828 and paragraph 19 thereof where the Supreme Court has observed that even if the order canceling the establishment of Primary Health Centre at a particular village passed by the Government was not according to the procedure prescribed in law as no notice was given to the Panchayat Samiti and the Government had no power to review an order made by it, yet the High Court should not have interfered because if the High Court quashed such an order, it would have restored an illegal order and it would have given the Health Centre to a village contrary to the valid resolution passed by the Panchayat Samiti. The High Court had, therefore, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
28. Counsel for the respondents has also relied upon the judgment rendered by this Court in the case of Arun Kumar Mishra & Others vs. State of U.P. & Others reported in 2010 (3) ADJ, 143 where this Court had observed that under Article 226 of the Constitution of India, the Court would not set-aside an order on two settled principles of law, firstly that it would result in restoration of an illegal order, and secondly when only one view is possible on the admitted facts of the case, affording opportunity of hearing to the petitioner would be a futile exercise. This Court has referred to the judgment of the Hon'ble Supreme Court in the case of S.L. Kapoor vs. Jagmohan & Others reported in AIR 1981 SC, 136 wherein it has been held that where under law only one view is possible the direction to obey the principles of natural justice would amount to issue of a futile writ.
29. It has been argued that by the order dated 27.01.2015 the respondent no. 2 has only set-aside an illegal appointment and substantial justice has been done and, therefore, this court should not interfere under Article 226 of the Constitution of India.
30. Moreover in the facts of the case, it is admitted that the petitioner did not possess the essential qualifications prescribed in the Advertisement of a Post Graduate Diploma in Hospitality/Public Relations. If the petitioner's case is also taken to be true that she did not submit sports certificates for District level and State level events, then 02 marks and 03 marks awarded to her respectively for such certificates by the Selection Committee, could not have been given to her. If that was the case then the petitioner would not have got 51 marks but her marks would have been reduced to only 46 i.e. less than the marks secured by the next candidate i.e. Satya Pal Singh who secured 49 marks.
31. It has also been argued that in any case full opportunity was given to the petitioner. She was issued a show-cause notice and she asked for copies of the documents. Such documents were not only shown to her but copies of the same were also given to her. In her reply she admitted that all her certificates were enclosed by her father to her application form. Moreover the allegation of the petitioner that she did not submit any sports certificate and somebody with mala fide intent kept the same in her record cannot be taken to be true as because of these sports certificates, the petitioner secured 05 marks more than the marks admissible to her. The petitioner is the beneficiary of such fraud, therefore, it was presumed that the fraud was committed by her. In such cases of fraud, there is no requirement of affording any opportunity of hearing.
32. Counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Another vs. M. Tripura Sundari Devi reported in (1990) 3 SCC, 655 and paragraph 6 thereof where the Supreme Court has observed that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice.
33. The learned counsel for the respondents has argued on the basis of a Constitution Bench judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi & Others reported in (2006) 4 SCC, 01 that if Article 14 and 16 are violated, the Courts would not be a party to uphold such violation. He has referred to paragraph nos. 43, 49 and 50 of the said judgment and argued that the petitioner did not possess the essential qualification for being appointed on the post in question. Her appointment had resulted in discrimination against the candidates who were similarly situated and who did not apply for the post only because they thought that the qualifications mentioned in the Advertisement was sacrosanct. It has also resulted in the denial of right to equal opportunity in public employment.
34. The learned counsel for the respondents also distinguished the judgment rendered in the case of Mohinder Singh Gill (supra) and Dr. T.P.SenKumar IPS (supra) and has referred to the judgment rendered by the Hon'ble Supreme Court in the case of PRP Exports And Others vs. Chief Secretary, government of Tamil Nadu And Others reported in (2014) 13 SCC, 692. In paragraph 8 of the aforesaid judgment the Supreme Court has observed that when larger public interest is involved, the Court can always look into the subsequent events. It has referred to paragraph 45 of the judgment in the case of All India Railway Recruitment Board vs. K. Shyam Kumar reported in (2010) 6 SCC, 614.
35. Learned counsel for the respondents has also referred to the judgments of the Hon'ble Supreme Court relating to fraudulent and erroneous appointments and cancellation of such appointment later on having been upheld by the Hon'ble Supreme Court in the case of Ram Preeti Yadav vs. U.P. Board of High School & Intermediate Education & Others reported in (2003) 8SCC, 311 (Paragraph 10); in the case of Mohd. Sartaj And Another vs. State of U.P. & Others reported in (2006) 2 SCC, 315; in the case of State of Chhattisgarh and others vs. Dhirjo Kumar Sengar reported in (2009) 13 SCC, 600 (Paragraph 12 and 13); in the case of Devendra Kumar vs. State of Uttranchal And Others reported in (2013) 9 SCC, 363; in the case of Khub Ram vs. Dalbir Singh And Another reported in (2015) 8 SCC, 368.
36. In the case of Ashok Kumar Sonkar vs. Union of India & Others reported in (2007) 4 SCC, 54. The Hon'ble Supreme Court observed in paragraph nos. 25 to 28 thus :-
25. ..........'any irregularity in the procedure by any authority shall not render the same invalid, unless the same affects the merits of the case' is stated to be rejected. Appointment of a teacher must conform to the constitutional scheme as adumbrated under Articles 14 and 16 if the Constitution of India and the terms of the Act or the stature or ordinances governing the field. Any violation of the provisions thereof would entitle the Visitor to exercise his jurisdiction under sub-section (7) of Section 5. It is also beyond any cavil that in exercising the said power, the statutory provisions interpreted by this Court must be followed.
26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A Court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."
37. Shri Arvind Srivastava has also relied upon the judgment of the Hon'ble Supreme Court in the case of Chairman And Managing Director, Food Corporation of India & Others vs. Jagdish Balaram Bahira & Others reported in (2017) 7 SCC, 670 where in paragraph 2, the Supreme Court has referred to the capture of benefits meant for certain socially and educationally backward classes of citizens by persons who do not belong to the beneficiary group and the observations made by the Hon'ble Supreme Court that this kind of capture poses a serious dimension. When a person who does not belong to a caste, tribe or class for whom reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. For one thing a person who is dis-entitled to the benefit of a welfare measure obtains the benefit. For another this deprives a beneficiary who is genuinely entitled to receive those benefits of a legitimate entitlement. This constitutes an egregious constitutional fraud. It is a fraud on the statutes which implement the provisions of the Constitution. It is a fraud on State policy.
38. The Court considered the question whether such persons who had fraudulently obtained such benefits although they do not belong to a beneficiary group should be allowed to retain the same on the ground of lapse of time and equities arising therefrom.
39. The Supreme Court dealt with the issue as to whether such equities are sustainable at law and if so, the limits that define the jurisdiction of the Court to protect individuals who misappropriate the benefits although they are not eligible for the same.
40. Miss Akansha Sharma, learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of India and Others reported in (2016) 8 SCC, 471 but the learned counsel for the respondents has argued that the aforesaid judgment does not apply in the facts of the petitioner's case. The decision in the aforesaid judgment is sub silentio on the point whether in case of fraud where facts were admitted still an enquiry or opportunity of hearing has to be given.
41. The learned counsel for the respondents has placed reliance upon the judgment in the case of State of Uttar Pradesh vs. Synthetics And Chemicals Ltd. reported in 1991 (4) SCC, 139 and paragraph 41 thereof which is being quoted herein below :-
"41. Does this principle extend and apply to a conclusion of law, which was neither raised or preceded by any consideration. In other words can such conclusions be considered as declaration of law ? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. 'a decision passes sub-silentio, in the technical sense that hs come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153. In Lancaster Motor Company (London) Ltd. vs. Bremith Ltd. the court did not fee bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority.' It was approved by this court in Municipal Corporation of Delhi vs. Gurnam Kaur. The Bench held that 'precedents sub-silentio and without argument are of no moment.' The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B.Shama Rao vs. Union Territory of Pondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.' any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability arid uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
42. Learned counsel for the respondents has also referred to a Full Bench decision of this Court rendered in the case of Ganga Saran, Movi Iftakharul Hasan vs. Civil Judge, Hapur, Ghaziabad, Special Judge, Muzaffar Nagar reported in 1991 AIR (All) 114 and paragraph 7 and 9 to argue that where this Court is faced with conflicting judgments of Coordinate Benches regarding the same controversy, this Court should prefer a judgment which discusses the law in detail and which also appears to lay down the law elaborately and accurately.
43. On a detailed consideration of the documents filed along with the writ petition and of the submissions made by the learned counsel for the parties, this court is of the considered opinion that the decision in this writ petition would revolve around the findings relating to two issues, firstly whether in terms of the Advertisement, in the absence of possession of essential eligibility qualification of Diploma in Hospitality/Public Relations, the appointment of the petitioner could have been made legally; and secondly whether such appointment having been made illegally and services being confirmed also, could later on be dispensed with without holding regular disciplinary proceedings under Rule 38 & 39 of the UPSIDC Rules of 1998-99.
44. This Court finds that admittedly the petitioner did not possess the required eligibility qualifications. In the rejoinder affidavit the petitioner has referred to her Post Graduate Degree of Master in Arts as a technical qualification for which she was entitled to additional marks. The Advertisement however, only required a candidate to possess a Graduation Degree and a Post Graduate Diploma in Hospitality/Public Relations. There was no mention of any preferential qualification or any additional marks to be given for any other qualification, for example, a Post Graduate Degree. Therefore, mere possession of a Post Graduate Degree of M.A. would not have entitled the petitioner for additional marks on taking it to be a technical qualification.
45. The petitioner has submitted repeatedly that she did not submit the sports certificate which were found to be forged by the respondents. If the petitioner's case is taken to be correct then marks for such sports certificates could not have been given to her at all, whereas in the tabulation chart filed as annexure to the counter affidavit, 02 marks have been given to the petitioner for participating in a sports event at District level and 03 marks have been given to her for participating in a sports event at State level. If these marks are deducted from her total marks, then the petitioner could certainly not have been selected as another candidate namely Satya Pal Singh had secured more marks than her.
46. The appointment of the petitioner having been wrongly/fraudulently made, she could not have been allowed to retain the benefit only because regular disciplinary proceedings were required to be conducted under the Rules applicable to her. The principles of natural justice were followed insofar as the petitioner was given opportunity of hearing by issuing a show-cause notice to her. She was given opportunity to peruse the record and was also given copies of the disputed documents. The Enquiry Officer also issued a charge-sheet to her and she submitted her detailed reply. However, conclusion of regular disciplinary proceedings was not done thereafter.
47. The Rules of UPSIDC of 1998-99 referred to incorrect information/misrepresentation resorted to by a candidate for obtaining appointment as a misconduct and removal from service as a major penalty. Therefore, the procedure prescribed may have been required to be followed after issuance of charge-sheet.
48. However, this Court finds that the observations of the Hon'ble Supreme Court in the case of Ashok Kumar Sonkar (supra) is applicable to this case also. This Court would not issue a futile writ for conducting disciplinary proceedings where the end result is known before hand.
49. This Court, therefore, does not consider the case of the petitioner as deserving exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is liable to be dismissed and is dismissed as such.
50. No order as to costs.
Order Date :- 12.11.2018 VR/